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Justices Return To Affirmative Action In Higher Ed

Students walk through the University of Texas, Austin, campus near the school's iconic tower on Sept. 27.
Eric Gay
Students walk through the University of Texas, Austin, campus near the school's iconic tower on Sept. 27.

The U.S. Supreme Court returns on Wednesday to the emotional issue of affirmative action in higher education. The court will once again hear oral arguments on the issue, this time in a case from the University of Texas.

Over the past 35 years, the court has twice ruled that race may be one of many factors in determining college admissions, as long as there are no racial quotas. Now, just nine years after its last decision, the justices seem poised to outright reverse or cut back on the previous rulings.

This time, the question is whether any sort of affirmative action program can be adopted on top of a race-neutral system that has produced at least some significant increase in campus diversity.

The test case comes from the University of Texas, Austin, one of the top universities in the country, which has a special history when it comes to race. The school was segregated by law until 1950, when the Supreme Court, in a landmark case, ruled that the university had to admit to its all-white law school the grandson of a slave.

Today, the student leading the battle on race is white.

Abigail Fisher was an honor roll student who played the cello and volunteered in the community. She "dreamt of going to the University of Texas ever since the second grade." But because of the way the system works at the university, Fisher did not get in and instead went to Louisiana State University, despite being admitted to other Texas schools.

Fisher claims she was rejected from the University of Texas because of her race. The university categorically denies that.

A key to understanding Fisher's case is knowing some history. Until 1996, UT operated like most other state schools; it had a selective admissions system that included using race or ethnicity as a factor. In 1996, however, a federal appeals court ruled that any racial considerations in admission were unconstitutional.

The immediate effect was that minority enrollment plummeted by 40 percent, the university says. Two years later, an alarmed state Legislature enacted a fix, signed into law by then-Gov. George W. Bush. State law now guaranteed admission to all students in the top 10 percent of their high school class.

The top 10 law worked, up to a point.

Because most high schools in Texas are segregated by neighborhood along racial and ethnic lines — schools in the Rio Grande Valley, for instance, are almost entirely Hispanic — the numbers of minorities admitted to the University of Texas rebounded. The university says, however, that even as the state minority population was surging (now it's more than 50 percent), the school's own minority admissions remained stagnant. In 2002, four years after the top 10 plan went into effect, minority enrollment remained below the 1996 affirmative action levels, according to school officials.

So, after the 2003 Supreme Court ruling that favored affirmative action, the University of Texas added race as one of the factors that could be considered for those applicants not automatically admitted through the top 10 percent plan. In 2008 when Fisher applied, 20 percent of the incoming class was admitted under the "holistic" admission plan that could consider race. According to the university, that 20 percent is essential to the student body as a whole.

University President Bill Powers argues that within and beyond the scope of academia — including in business — nobody would hire people based only on their class rank in college or high school. Rather, employers would also look at leadership, character and particular skills. And so, too, he contends, the university wants to consider applicants who have special skills or gifts in music, art, geosciences and athletics.

To cite just one example, Powers points to the kid who might have won the state math competition but ranked in the top 12 percent of his class, so was not automatically admitted.

While the University of Texas contends that race is a very small part of the admission decision, Fisher believes race was a decisive factor in her rejection. She was not in the top 10 percent of her high school class, so she was among those who were evaluated on their grades, plus other factors. She says that people in her high school class with lower grades and similar activities were admitted, and "the only difference between us was the color of our skin."

The university unequivocally says that claim is untrue. In admitting students outside the 10 percent plan, the university notes that it combines two scores. The first is the Academic Index, based on grades and board scores. The second is the Personal Achievement Index, based on two independently graded essays plus six other factors: leadership potential, honors and awards, work experience, community service, extracurricular activities and special circumstances.

Only this last category, special circumstances, can include consideration of race or ethnicity, or, for that matter, economic circumstances, or whether the applicant comes from a home where English is not spoken.

The overall Personal Achievement Index score, a maximum of 6, is combined with the Academic Index score, and then plotted on a graph. Based on the available number of seats, everyone above a certain combined score on the graph is admitted, and everyone below is rejected. The university says Fisher fell below the line.

"Even if Abigail Fisher had received a perfect Personal Achievement Index score she would not have been admitted ... because her Academic Index was simply not high enough," says Gregory Garre, lawyer for the University. Garre, who served as U.S. solicitor general in the George W. Bush administration, says flatly that "Fisher would not have been admitted, no matter what her race."

Fisher's lawyers question that, but more important, they contend that any consideration of race is gratuitous. Edward Blum, who helped put Fisher's case together, claims that the top 10 percent plan was already creating a diverse student body at the university, and adding race or ethnicity as a factor for consideration "was simply unnecessary."

Garre dismisses that claim as "simply not true." According to Garre, in 2002, when the top 10 percent plan was firmly in place, African-American enrollment was dropping, and Hispanics remained woefully underrepresented. Black and Hispanic enrollment totaled 17.7 percent, he notes, while the state's population was almost 45 percent black and Hispanic.

Blum counters that if the university is considering statewide demographics in admissions, "that's a backdoor quota."

The case is of great concern, and not just to the academic community. Ninety-eight friend-of-the-court briefs have been filed in the case. Seventy-three urge the court to uphold the affirmative action plan.

The Department of Defense, among other U.S. agencies, has weighed in, describing for the court the large ROTC program on the campus and how diversity there is part of the pipeline to providing a diverse military officer corps. A group of high-ranking retired military officers has filed a brief noting that class rank tells little about leadership capacity or character, which are essential traits for the military. A large group of Fortune 100 companies filed a brief telling the justices how important it is for employees to come from a diverse campus where they are exposed to the kind of world they will face in the global economy.

At the same time, other academics and lawyers argue that affirmative action harms the exact people the programs try to help. UCLA law professor Richard Sander and journalist Stuart Taylor argue in their friend-of-the-court brief that minorities accepted through affirmative action often underperform once they are admitted, which they call "mismatch," leading to lower grades and graduation rates for minorities admitted to elite institutions.

For Fisher, however, the issue is one of morality and values. "I was taught from the time I was a little girl," she said, "that any kind of discrimination was wrong."

There are at least four justices who are clearly on record as agreeing with that sentiment.

In 2003, when the court upheld limited affirmative action programs, the 5-to-4 decision was written by Justice Sandra Day O'Connor. She has since retired and been replaced by Justice Samuel Alito, a dedicated foe of affirmative action. That leaves Justice Anthony Kennedy as the decisive vote in this case. While in the past he has accepted the need for diversity in college admissions, he has never seen a program that he thought met constitutional muster.

Justice Elena Kagan is recused, presumably because she worked on this case when she was in the Obama administration. Thus, the best that affirmative action supporters can hope for is a 4-4 tie, which would preserve the status quo. Most experts, though, think that a tie is very unlikely and that the court accepted this case for the very purpose of either reversing its past affirmative action rulings, or making such plans so restrictive that they are possible in theory, but not in practice.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.